dismissed EB-2 NIW Case: Architecture

U.S. Citizenship 
and Immigration 
Services 
In Re: 10813949 
Motion on Administrative Appeals Office Decision 
Non-Precedent Decision of the 
Administrative Appeals Office 
Date: MAR. 12, 2021 
Form 1-140, Immigrant Petition for Alien Worker (Advanced Degree, Exceptional Ability, National 
Interest Waiver) 
The Petitioner, a historical architect, seeks second preference immigrant classification as a member of 
the professions holding an advanced degree, as well as a national interest waiver of the job offer 
requirement attached to this EB-2 classification. See Immigration and Nationality Act (the Act) 
section 203(b)(2), 8 U.S.C. § 1153(b)(2). 
The Director of the Nebraska Service Center denied the petition and a subsequent motion, concluding 
that the Petitioner qualified for classification as a member of the professions holding an advanced 
degree but that she had not established that a waiver of the required job offer, and thus of the labor 
certification, would be in the national interest. 
We dismissed the subsequent appeal, concluding that the Petitioner has not sufficiently demonstrated 
the national importance of her proposed endeavor under the fust prong of the analytical framework 
described in the precedent decision Matter of Dhanasar, 26 l&N Dec. 884 (AAO 2016). In our 
decision, we declined to comment on whether the record demonstrates eligibility under the second and 
third prongs outlined in Dhanasar. The matter is before us again on a combined motion to reopen and 
a motion to reconsider. 
In these proceedings, it is the Petitioner's burden to establish eligibility for the requested benefit. 
Section 291 of the Act, 8 U.S.C. § 1361. Upon review, we will dismiss the combined motion. 
I. LAW 
A motion to reopen is based on documentary evidence of new facts, and a motion to reconsider is 
based on an incorrect application of law or policy. The requirements of a motion to reopen are located 
at 8 C.F.R. § 103.5(a)(2), and the requirements of a motion to reconsider are located at 8 C.F.R. 
§ 103.5(a)(3). We may grant a motion that satisfies these requirements and demonstrates eligibility 
for the requested immigration benefit. 
II. ANALYSIS 
We concluded on appeal that the documentation in the record does not establish the national 
importance of the Petitioner's proposed endeavor, as required by the first Dhanasar prong. We will 
address the merits of the motion to reopen and the motion to reconsider separately. 
First, our decision summarized the proposed endeavor as follows: 
The Petitioner indicated that she intends to continue her work aimed at restoring and 
preserving government and religious buildings. She stated that her proposed work 
involves "servin as a historical consultant on building remodeling" for thel I 
The Petitioner farther explained 
that she plans to advise on cultural elements for a number of their 
communit centers including: .._ ___ ___.Education Center, Community Service 
Center Faith Center and Museum, and more." The record includes a letter 
from~---------~ president ofl I requesting the Petitioner's 
services "to provide concepl design I consultation for remodeling of I I] 
buildings, with reference to cultural elements, including coordination of 
implementation, liaising with su1pliers a~r contractors to ensure the quality of the end 
result; and also custom design o exhibition displays." 11 lforther 
noted that..c=::J "owns five commercial buildings with 75,000 square feet area, 
located in ~etropolitan area." 
In addition, the Petitioner provided a letter froml I a senior archeologist 
with thel ts Heritage and Historic Preservation Department, stating that 
the Petitioner and a colleague were under consideration for a project involving "the 
that was built around 1935." I I requested their 
~----:----..,.....,...----,--,---~ 
assistance with "documentation of the three existing historical buildings, particularly 
building no. 302, which has architectural decorative works which we would like to 
preserve and document before demolishing it." She also sought "recommendations for 
reusing those materials which will be available after demolishing and reusing them for 
the construction of our new building." 
A. Motion to Reopen 
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. 
§ 103.5(a)(2). The regulation at 8 C.F.R. § 103.5(a)(2) does not define what constitutes a "new" fact, 
nor does it mirror the Board of Immigration Appeals' (the Board) definition of "new" at 8 C.F.R. 
§ 1003 .2( c )( 1) ( stating that a motion to reopen will not be granted unless the evidence "was not 
available and could not have been discovered or presented at the former hearing"). Unlike the Board 
regulation, we do not require the evidence of a "new fact" to have been previously unavailable or 
undiscoverable. Instead, we interpret "new facts" to mean facts that are relevant to the issue(s) raised 
1 As the Petitioner is applying for a waiver of the job offer requirement, it is not necessary for her to have a job offer from 
a specific employer. However, we will consider information about her current and prospective positions to illustrate the 
capacity in which she intends to work in order to determine whether her proposed endeavor meets the requirements of the 
Dhanasar analytical framework. 
2 
on motion and that have not been previously submitted in the proceeding, which includes the original 
petition. Reasserting previously stated facts or resubmitting previously provided evidence does not 
constitute "new facts." 
On motion to reopen, the Petitioner submits the following evidence: 
• A letter froml l the associate professor and chair of .... l __ __. 
University's Department of History of Art and Architecture, dated February 2020; 
• A letter froml I president of thel !College, 
dated February 2020; 
• An excer t from a document titled 
• 
~----------~' previously submitted on appeal; 
An undated document titled L 
I I ' • An excer t from a document titled '-------------------' ' dated Ma 2005· and 
• A document titled 
' dated December 2006; 
On motion, the Petitioner asserts that "the national importance of [her] work is evident from the fact 
that she is routinely sought after to speak at conferences and university speaking engagements," 
referencing the two letters as examples. The one-page letter froml I asserts that he invited 
the Petitioner "to present a public lecture on 24 October 2018," and he discusses the event. However, 
a petitioner must establish eligibility at the time of filing. 8 C.F.R. § 103.2(b)(l). Because the event 
described byl I occurred after the petition filing date in 2017-and, moreover, after the 
Director's initial decision in 2018-it does not establish eligibility at the time of filing. Id. 
Additionally, as summarized above, at the time of filing the proposed endeavor did not include 
speaking at conferences and university speaking engagements. However, in support of the Petitioner's 
prior motion on the Director's decision, she submitted evidence that sh~' peak about 
employing historid I forms in her architectural design practice in at I I 
University on October 24, 2018. Therefore, the fact that the Petitioner lectured at University 
in October 2018 is not new for the purposes of the motion on our appeal decision, because that 
information was previously submitted in the proceeding. Accordingly, to the extent that the Petitioner 
asserts that her work is nationally important because she speaks about it at conferences and 
universities, we need not consider that fact as it is not new.2 
2 In contrast, to the extent that the Petitioner asserts that her speaking engagements at conferences and universities are part 
of her proposed endeavor, that presents a set of facts that did not exist at the time of filing. A visa petition may not be 
approved after a petitioner or beneficiary becomes eligible under a new set of facts. See 8 C.F.R. § 103.2(b )(1 ); see also 
Matter of Michelin Tire Corp., 17 I&N Dec. 248,249 (Reg'l Comm'r 1978). A petitioner may not make material changes 
to a petition in an effort to make a deficient petition conform to U.S. Citizenship and Immigration Services (USCIS) 
requirements. See Matter of lzummi, 22 l&N Dec. 169, 176 (Assoc. Comm'r 1998). Because, at the time of filing. the 
proposed endeavor did not include speaking engagements at conferences and universities, the fact that the Petitioner speaks 
at conferences and universities cannot establish eligibility as part of the proposed endeavor. 
3 
Furthermore, the subject of the Petitioner's speaking engagement, "about employing historic! I 
forms in her architectural design practice irj I' does not address the aspects of the proposed 
endeavor, summarized above. Therefore, even to the extent that we may consider the event described 
byl I the event is attenuated from the work the Petitioner would perform as part of the 
proposed endeavor in the United States. Instead, the event appears to describe interest in the 
Petitioner's past, and her prior work abroad. 
The two-page letter from .... l ___ _____.lstates that "on Wednesday, March 6, 2019, we were proud to 
host [the Petitioner], who ave a PowerPoint-enhanced lecture in our [c]onference [h]all, entitled: 
' and he 
describes the event. However, similar to the event discussed in the letter from.__ ____ __. the 
event described b~ I occurred after the petition filing date in 201 7 and after the initial 
decision in 2018. Therefore, it does not establish eligibility at the time of filing. 
The Petitioner submitted the next document listed above, regarding the.__ ________ _., on 
appeal. Because the document was already in the record, it does not present a new fact on motion. 
Moreover, the document addresses work "undertaken December 2018," after both the petition fTngl 
date in 2017 and the date of the Director's decision. Therefore, similar to the letters from 
I I andl I thd !documentation does not establish eligibility 
at the time offiling. 3 8 C.F.R. § 103.2(b)(l). 
On appeal, the Petitioner asserts that thel I refurbishment "has cultural significance for 
people in the U.S. in general, and particularly thel ~rea and its suburbs, since the center hosts 
many events, inviting visiting speakers and exhibitions, and the work is thus in the national interest." 
The I I document submitted on motion contains 21 pages of photographs depicting the 
I I The document is undated; however, we note that in the brief dated November 2018, 
submitted in support of the combined motion on the Director's initial denial, the Petitioner asserted 
that she "has been responsible for the refurbishment of community center facilities" at thel I 
I I Therefore, that the Petitioner refurbished th~ I facilities is not a new fact in 
support of the motion on our appeal dismissal. Furthermore, although the photographs depict the 
I I the Petitioner does not elaborate on how the photographs demonstrate that the proposed 
endeavor is of national importance. 
We first note that the next 1ocument I l is an excerpt. 4 On motion, the 
Petitioner asserts that the I document states, "[t]he United States 
Department of Housing and Urban Development is committed to meeting the unique housing needs 
of the citizens of the 'colonias,' those rural communities and neighborhoods located close to the U.S.-
3 We rknow!edged in om a:nef1 decision that "the Petitioner's proposed remodeling and preservation consulting work 
for .. '--------~-' has substantial merit," as part of the endeavor to be performed after the petition filing 
date. However. documentation of work performed after the petition filing date may not establish eligibility as of the 
petition filing date. as required by 8 C.F.R. § 103.2(b)(l). Moreover, because the work "undertaken December 2018" 
occurred after the Director's decision, it may not establish continuing eligibility through adjudication. Rather, our 
consideration ofth ._ _______ _. project is of the proposal of the work to be performed, as articulated the time 
of filing, not of the work actually performed after the time of filing. 
4 The document in the record appears to be the first 10 pages of a document consisting of at least 111 pages. 
4 
Mexico border that lack adequate infrastructure and other basic services." 5 The Petitioner also asserts 
that the document indicates that "the U.S. Federal Government is committed to instituting policies and 
procedures for exactly the type of work [the Petitioner] is hoping to continue, thus establishing the 
national importance of her work." However, the Petitioner does not establish on motion how the 
document, dated 2005, specifically addresses the proposed endeavor and presents a new fact about the 
national importance of the Petitioner's proposed endeavor, as articulated in her 2017 petition. 
Next, the document discusses traditional crafts in , a craft economy 
and rovides information about.__ _________ __. However, similar tp......tb.e., 
document, the Petitioner does not establish on motion how the L_J 
m 
--------,-----~ .__ _____ ~document, dated 2006, specifically addresses the proposed endeavor and presents a 
new fact about the national importance of the Petitioner's proposed endeavor, as articulated in her 
201 7 petition. 
In the motion brief: the Petitioner also lists 24 examples of "work which she has generated for many 
U.S. individuals as artists, artisans, small manufacturers and larger companies, [which has] brought 
economic benefits, as per the standard of national importance." The Petitioner also lists 11 examples 
of "cultural contributions set forth by [her] past work ... , specifically for I I Food and 
" in the area ofi l Illinois. Neither list provides the dates on .__ ___________ ~ 
which the Petitioner generated work for artists, artisans, and manufacturers, or made cultural 
contributions. Although evidence of the Petitioner's past work is material to the second Dhanasar 
prong, it does not address the national importance of the proposed endeavor. 
In summation, the Petitioner has not presented on motion a new fact that may establish eligibility 
under the first Dhanasar prong. 
B. Motion to Reconsider 
A motion to reconsider must establish that our decision was based on an incorrect application of law 
or policy and that the decision was incorrect based on the evidence in the record of proceedings at the 
time of the decision. 8 C.F.R. § 103.5(a)(3). We do not consider new facts or evidence in a motion 
to reconsider. 
The Petitioner does not specifically assert on appeal that our decision was based on an incorrect 
application of Dhanasar, based on the evidence in the record of proceedings at the time of the 
decision. 6 Instead, the Petitioner generally requests us to reach a different conclusion based on the 
evidence discussed above, in the context of a motion to reopen. We affirm that our decision correctly 
applied Dhanasar, and that it was correct, based on the evidence in the record at the time of the 
decision. 
5 This assertion is the beginning of the document's foreword. 
6 The Petitioner asserts in the motion before us that "USCTS has erred in its decision of [the Petitioner's] petition and that 
a waiver of the requirements of a labor certification is warranted." In contrast, in support of the prior motion on the 
Director's decision, the Petitioner specifically asserted, "the Service inconectly applied the standard for national 
importance set forth in Matter of Dhanasar." 
5 
On motion, the Petitioner asserts that "Section 101 ( d)(2) of the National Historic Preservation Act 
[(NHPA)], 16 U.S.C. § 470a, et seq .... specifically requires the Federal Government to establish a 
program to assistl I in preserving their particular historic properties." The Petitioner further 
asserts that "[t]he fact that there is extensive Congressional law specific to the work [the Petitioner] is 
conducting indisputably establishes its national importance." The existence of federal statutes (such 
as the NHPA) and other U.S. government programs relating to assisting! ldoes not 
automatically render the work of an individual architect or preservationist nationally important under 
the Dhanasar framework. Moreover, the motion does not identify any section of the NHP A that 
mandates a finding that Petitioner's proposed endeavor has national importance. As such, the 
Petitioner has not shown that our decision contained an incorrect application of law or policy. 
In summation, the Petitioner has not established on motion that our decision was based on an incorrect 
application of law or policy and that the decision was incorrect based on the evidence in the record of 
proceedings at the time of the decision. Because we limited our appeal decision to an analysis of the 
first Dhanasar prong, and because our conclusion on that issue is dispositive, we need not address the 
Petitioner's assertions on motion regarding the second and third prongs of the Dhanasar framework. 
III. CONCLUSION 
As the Petitioner has not met the requirements for a motion to reopen or a motion to reconsider, we 
affirm our prior conclusion that the Petitioner has not established eligibility for, or otherwise merits, a 
national interest waiver as a matter of discretion. 
ORDER: The motion to reopen is dismissed. 
FURTHER ORDER: The motion to reconsider is dismissed. 
6